Supreme Court New South Wales Medium Neutral Citation: Estate of Ivan John Gonda [2012] NSWSC 357 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [10] of judgment. Catchwords: WILLS AND ESTATES - informal will - whether deceased intended document to form his will or to form an alteration or full or partial revocation of earlier will - deceased familiar with the formal requirements of the making of a will - deceased did not intend document to have immediate operation as will Legislation Cited: Succession Act 2006 Category: Principal judgment Parties: Christopher John Beauchamp (1st Plaintiff) Simon James Singer (2nd Plaintiff) Emanuel School (Defendant) Representation: M S Willmott SC (Plaintiffs and mentions for the defendant, Sydney Jewish Museum and Sir Moses Montefiore Home) Ms Treloar (Interested party - Wolper Jewish Hospital) David Landa Stewart (Plaintiffs) Pigott Stinson Lawyers (Defendant) Peter M Wayne & Associates (Sydney Jewish Museum) Abadee Dresdner & Freeman (Sir Moses Montefiore Home) Middletons (Wolper Jewish Hospital) File Number(s): 2011/312391 Judgment 1HIS HONOUR: These proceedings concern the estate of Ivan John Gonda who died on 9 February 2011 aged 84. His estate is substantial. The plaintiffs are named as the executors of a will made by Mr Gonda on 21 December 2010. The plaintiffs were Mr Gonda's solicitor and accountant. The question is whether the Court should be satisfied that the deceased intended a document described as "My Last Will and Testament" dated 16 January 2011 to form his will, or to form an alteration, or full, or partial revocation of his will of 21 December 2010. (See Succession Act 2006, s 8.) 2The deceased was described by his solicitor, Mr Singer, as a "seasoned will- maker". He made many wills using the services of Mr Singer. Mr Singer is a partner of the firm David Landa Stewart. The deceased was a longstanding client of that firm. Mr Singer deposes that in the last few months of his life the deceased typed instructions for new wills using what Mr Singer described as a "fax template". He used such a template to give instructions dated 4 December 2010 and 8 December 2010 prior to the execution of the will on 21 December 2010. Those instructions were also headed "My Last Will and Testament" and take the same form as the document dated 16 January 2011, in that they contained no provision for the appointment of executors, no clause revoking prior wills and no general words of gift. Rather, those instructions, like the document dated 16 January 2011, launched directly into descriptions of who should inherit specified items of property and set out various pecuniary legacies. The principal difference between the documents of 4 and 8 December 2010, (apart from the differences in the gifts and specified intended beneficiaries) is that the document dated 16 January 2011 was signed by the deceased. He signed the document on its second page. The document itself is of two pages of paper. The second page has been typed on the back of some other document that has been printed from a document downloaded from the Internet. Mr Singer describes the second page as being printed on a "recycled scrap paper", and that is a fair description. 3There is a number of indications on the document of 16 January 2011 that the deceased did not intend it to have immediate operation as his will. I have already mentioned three of them, namely, that it contains no appointment of executors, no clause revoking prior wills, and no general words of gift. 4There are other factors pointing in the same direction. One of these is that in his will of 21 December 2010 the deceased was at pains to explain why he had not made provision, or greater provision, for a former wife and his son. There was no such explanation in the document of 16 January 2011. The spelling of the document of 16 January 2011 is erratic. But for the deceased's signature on the second page, it would be quite clear that the deceased did not intend the document to form his will. I do not think that a different conclusion should be drawn by reason of the deceased's signature. 5The principal reason for that conclusion is that the deceased attended on Mr Singer in his office on 2 February 2011, that is to say, two and a half weeks after the document dated 16 January. He did not mention to Mr Singer that he had made a new will. He attended at the offices of David Landa Stewart to collect title deeds and other documents that he told Mr Singer he wanted to put into safe custody at his bank. He did not collect his will of 21 December 2010. Mr Singer retained custody of the original will. Had the deceased intended the document of 16 January 2011 to form his will, it would be expected he would have asked for the return of the will of 21 December 2010 in order that it could be destroyed. It would also be expected that he would have told Mr Singer that he had changed the will which Mr Singer had prepared for him less than six weeks previously. 6The deceased, being a "seasoned will-maker" was familiar with the formal requirements of the making of a will. That is to say, he was aware that a will should be signed in the presence of two witnesses who should attest his signature. Mr Singer deposed that, based upon his longstanding acquaintance, in his view the deceased would not have wished to leave the validity or enforceability of such a significant document as his will to chance. 7I accept that evidence. Given the size of the deceased's estate and the full and formal document of 21 December 2010, I think it unlikely that the deceased intended the document of 16 January 2011 to form his will. 8The question remains why he signed the document on the second page. There can be no certain answer to that question. I would infer only that the deceased did so so as to record his then thoughts as to how his estate should be left, but without intending the document should have immediate operation as his will. 9All interested parties have been given notice of this application. No one has appeared to propound the instrument of 16 January 2011 as the deceased's will. I am not satisfied that the deceased intended that it form his will, or that it be an alteration or full or partial revocation of his will of 21 December 2010. 10For these reasons I make the following orders and declaration: (1)Order in accordance with paragraph 2 of the summons filed on 28 November 2011. (2)Declare that the Court is not satisfied that the deceased intended that a document entitled "My Last Will and Testament" and bearing date 16 January 2011 form his will or an alteration or full or partial revocation of his will. (3)Order that the matter be remitted to the Registrar to complete the grant forthwith. (4)Order the plaintiffs' costs of the proceedings on the indemnity basis be paid out of the deceased's estate. (5)These orders may be taken out forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012